Burial Regulations Working Group minutes: July 2016

Attendees and apologies

In attendance

• City of Edinburgh Council
• Simon Cuthbert-Kerr (SCK), Scottish Government (chair)
• Orkney Islands Council
• West Lothian Council
• North Lanarkshire Council
• Highland Council
• Binning Memorial Wood
• Ian Kearns, Inverclyde Council
• East Ayrshire Council
• Katrina McNeill, Scottish Government
• Edinburgh Crematorium Ltd
• Fiona Porter, North Ayrshire Council
• Federation of Burial and Cremation Authorities (FBCA)
• East Lothian Council
• Shetland Islands Council
• Institute of Cemetery and Crematorium Management (ICCM)
• Highland Council
• Aberdeenshire Council

Apologies

• David MacColl, Glasgow City Council
• Liz Murphy, Fife Council

Items and actions

Welcome and introduction

SCK welcomed everyone to the meeting. He explained that the purpose of the group was to help develop regulations for the management of burial grounds, to be made under section 6 of the Burial and Cremation (Scotland) Act 2016. These would have a similar function to the Local Authorities Cemeteries Order 1977, which has effect in England and Wales, but would not be an exact replica. Section 6 of the 2016 Act lists the matters that may be included in the regulations; these are expressed as powers, and do not need to be in the regulations if they are not considered necessary.

While the regulations can set out detailed requirements, their main focus would be to ensure burial authorities could carry out particular functions as required. Detailed provisions can be provided where necessary.

The intention was that draft regulations would be laid in the Scottish Parliament during the 2016 to 2017 parliamentary year. The regulations would be made using the affirmative procedure, meaning that the Scottish Parliament would scrutinise the regulations before they came into force. The 2016 Act requires that the draft regulations are consulted on before being laid before the Scottish Parliament.

Discussion of matters that need to be included in the regulations

The group discussed various matters that might be in the regulations. These followed the list set out at section 6(2)(a) to (m) in the 2016 Act.

The maintenance of burial grounds, and buildings, walls, fences or other structures erected on burial grounds

The group considered this power. There was considerable discussion about the detail of how this might be used for maintenance, including the steps that could be taken to make safe a particular structure within a burial ground. A variety of views were expressed about how something might be made safe, and whether the regulations needed to cover specific detail – this is discussed in more detail under paragraph (d). There was discussion about how the regulations might interact with any management rules developed by individual burial grounds. In particular, it was considered necessary to recognise that different standards would need to apply to active and closed burial grounds, as well as to burial grounds in different places – for example, the presentation of a rural burial ground might differ from how an urban burial ground is expected to look.

It was noted that local authorities already had maintenance responsibilities for former Church of Scotland burial grounds that had transferred under the Church of Scotland (Property and Endowments) Act 1925. It might be possible to repeal such sections, but it may be the case that the regulations co-exist with the 1925 Act.

Given the diversity of views expressed, and the range of potential issues that might be considered necessary for maintenance, the group agreed that the regulations could require each burial authority to have a management plan for each burial ground.

Action: the Scottish Government will draft regulations that require burial authorities to have management plans in place. The regulations will also allow burial authorities to take whatever action is deemed necessary for the maintenance of burial ground and buildings, walls, fences or other structures erected on burial grounds.

Enclosing, laying out and embellishing burial grounds

The group discussed what was meant by this. SCK explained that this power related to the overall layout of a burial ground, not to individual elements like the distance between lairs (which can be covered by paragraph (h)) or the provision of separate space for burials of people of particular faiths (which can be covered by paragraph (j).

There was discussion about whether the regulations should set out a requirement for car parks. While the value of this was clear, SCK suggested that it was ultimately a decision for each burial authority to make. Nonetheless, this can be something that is addressed in either the regulations or guidance. 

The group discussed whether anything was required to allow burial authorities to set aside particular areas of a burial ground for burials carried out by the burial ground under the National Assistance Act 1948 or the Social Security (Scotland) Act 1968 (these powers are now set out in the 2016 Act, and the relevant sections of the 1948 Act and 1968 Act will be repealed). The consensus was that nothing particular was required for this purpose, since local authorities would typically apply for a burial for this purpose in a burial ground for which they were the burial authority. The Scottish Government would consider whether the regulations needed to address this.

Broadly speaking, there were no particular suggestions for how this power might be used, other than to enable burial authorities to do whatever they considered necessary to enclose, lay out and embellish burial grounds.

Action: the Scottish Government will draft the regulations to allow burial authorities to do what is required to enclose, lay out and embellish burial grounds.

Access to and within burial grounds, including the construction, repair, maintenance and improvement of roads and paths

There was considerable discussion about this point. Questions were asked about which roads this would apply to – in particular, there was some concern that roads leading into burial grounds, but also used for other purposes, especially in rural areas, could fall into disrepair as a result of traffic not going to the burial ground. SCK explained that burial authorities would not be responsible for the maintenance of roads that they did not own or were not generally responsible for.

There was also discussion about what would be required inside burial grounds. SCK said that the general principle that should apply is that as many people as possible should have as much access as possible to the burial ground. This meant that roads, paths and other access routes should be kept in as good condition as possible. However, it was not the intention that the regulations would say anything about matters such as the width or covering used for paths and roads, or the total area of a burial ground that would be provided for access – these were matters for the burial authority to decide. The key concern was to ensure that people were able to access the burial ground generally. This extended to burial authorities taking action to address flooding, for example, an issue already considered during the discussion of paragraph (c).

The group again considered whether the regulations should address the provision of car parks under this power. It was suggested that this was something that would be considered by planning authorities rather than a power that was required for burial authorities. Nonetheless, the Scottish Government will consider whether this should be included in the regulations or guidance.

Action: the Scottish Government will draft regulations based on this discussion, and will attempt to strike a balance between providing clarity about a burial authority’s responsibilities in relation to access and the need for a burial authority to be able to take proportionate action. The draft will attempt to recognise the fact that regulations will not be able to provide a solution for every situation that may arise, but should be able to provide a solid general position under which burial authorities can operate.

The maintenance and repair of memorials, buildings and other structures on burial grounds (including for the purpose of making them safe)

This is a key part of the regulations, and there was considerable discussion about it. SCK explained that the intention is to place burial authorities under a duty to ensure the safety of burial grounds, including taking any action necessary to achieve safety. 

The group discussed ways in which headstones could be made safe. The intention is that the regulations will simply require that a burial authority takes the action necessary to make a headstone safe, and will leave it to the judgement of the burial authority to decide what action to take. It was suggested that guidance could be provided about the type of activity that would be considered appropriate. It was also suggested that existing advice from the likes the National Association of Memorial Masons (NAMM), the ICCM and the FBCA could form the basis of any advice provided.

There was discussion of the kind of situations where action would be required to make something safe. It was generally agreed that making headstones safe and ensuring walls and fences were sound was necessary. There was less agreement in relation to issue such as flooding. These are issues that the regulations can address in general, with further detail set out in guidance. Such guidance would be used to support the action a burial authority might take in particular situations.

The group considered whether burial authorities should be able to move headstones where it was thought necessary. Generally, the consensus appeared to be that headstones could be moved. The biggest question appeared to be about what should happen to such headstones. Currently there are a variety of methods used, including laying them down close to the lair or placing them around the perimeter of the burial ground. There appeared to be no particular objections to headstones ultimately being destroyed, although the group recognised the sensitivities of this. 

There was discussion about what action would be necessary to maintain other structures, such as chapels. Examples were given of methods used currently to keep burial grounds safe by fencing off dilapidated buildings. This approach should be fine in future – it will be for each burial authority to decide what steps to take, although the advice set out in the guidance, as well as any requirements placed on burial authorities by the regulations, will form the framework.

Action: the Scottish Government will develop regulations that reflect the various methods already used, but allow burial authorities to take the steps that they feel are appropriate in given circumstances. In particular, the process of removing and storing (or destroying) headstones would be set out. The Scottish Government will consider whether references to particular methods and processes should be set out in regulations or in guidance.

The charging of fees by burial authorities which are local authorities in respect of such matters as may be specified in the regulations

SCK explained that the purpose of this power was not to allow the regulations to establish fees for particular activities carried out by a burial authority. Instead, the regulations could enable burial authorities to charge for particular services not already provided for in the 2016 Act. The Scottish Government did not intend to require burial authorities to charge set fees. Burial authorities will be expected to list all the services they provide and what the charge for each service is.

There was a discussion about the various considerations that affected fees – these varied widely for different reasons. For example, not all burial authorities provide exactly the same range of services and terminology often differs, further preventing a straightforward comparison between costs. These points were noted, and should not affect anything set out in the regulations in relation to this power.

Action: it does not appear that any particular cost element needs to be set out in the regulations. However, the group is invited to consider further whether anything is required in regard to costs.

Persons employed by burial authorities (including in relation to training, qualifications and membership of professional bodies)

This power allows the regulations to set out particular requirements on burial authorities in relation to its staff. In particular, there may be a need for particular training or qualifications. The group was of the view that there are various training programmes and qualifications in place that are suitable and should be recognised as such. In particular, some local authorities provide their own training. If anything were to be put in regulations about this, it would be necessary to ensure that existing training that is considered to be of sufficient quality could continue. SCK suggested that inspectors of burial could be used to inform this, when appointed.

It was also noted that this training might have to apply to those managing burial services even if they were not doing anything practical in the day-to-day running of the burial ground. SCK suggested that the focus should be on those who were carrying out tasks in the burial ground, and said that there might be fewer technical considerations than with cremation.

Action: the Scottish Government will consider what is required in the regulations, and will draft them accordingly.

Conditions relating to the erection of a memorial, building or other structure on burial grounds

This power allows the regulations to set out any particular conditions that burial authorities may apply to the erection of a memorial, burial or other structure in a burial ground. The discussion suggested that burial authorities take a variety of approaches. The general consensus was that the regulations should be permissive, allowing burial authorities to place any such conditions as they consider necessary. It was recognised that it might be necessary for a burial authority to impose specific conditions in different burial grounds to reflect [?] particular conditions. The regulations will allow this.

Action: the Scottish Government will draft the regulations so that burial authorities are able to impose such conditions as they consider necessary.

The imposition by burial authorities of such restrictions and conditions as they think necessary or appropriate in relation to (i) the layout of burial grounds (including in relation to the size of, and distance between, lairs), (ii) the right to erect a memorial, building or other structure on burial grounds (including in relation to materials, construction, size, maintenance and liability for costs in respect of work carried out by burial authorities)

The group suggested that there were particular considerations that would apply in different situations. As such, the regulations should give burial authorities the power to impose restrictions as set out by paragraph (h) but allow burial authorities to apply different restrictions and conditions as necessary. There appeared to be little appetite for this level of detail to be set out at a national level.

Action: the Scottish Government will draft the regulations to allow burial authorities to impose such restrictions and conditions as they consider necessary.

The depth at which human remains may be buried

This relates to the distance between the top of the topmost coffin in a lair and the ground. It had originally been suggested that a depth of three feet should be set out in the Act, but the consultation suggested that this would not be achievable in various locations because of the ground conditions. It might also be difficult to achieve depending on how previous interments had been carried out in a given lair. For these reasons, the Act does not include a minimum depth.

The general view from the group was that a minimum depth would be useful. It was acknowledged that three feet might be difficult, but there was a general consensus that two feet should be achievable. SCK noted that if the depth was set out in the regulations it would need to be followed in every instance.

Although it was accepted that ashes are still human remains, there appeared to be a lack of agreement on whether a minimum burial depth needed to apply to all burials or only whole body burials.

Action: The Scottish Government will consider whether a minimum burial depth should be provided for in the regulations, or whether this would be better set out in guidance.

The designation of part of a burial ground for use by particular faiths or religious bodies and (k) the provision of buildings for the use of persons of particular faiths or belonging to particular religious bodies

These items were discussed together. The regulations could be used to specify that burial authorities may designate part of a burial ground for use by people of particular faiths, as well as providing buildings for people of particular faiths. However, neither would be a requirement.

There was some discussion of the most practical way of achieving burial space for particular faiths, particularly where people needed to be buried facing a certain way. In general, no particular requirements were suggested for the regulations.

SCK noted the sensitivities around the provision of particular services for people of particular faiths and said he would check whether anything would be required legally.

Action: The Scottish Government will consider whether there is a requirement for burial authorities to provide particular services to people from certain faiths.

Creating criminal offences to be triable summarily and punishable by a fine not exceeding level three on the standard scale and (m) defences and evidential matters relating to such offences

This power allows the regulations to make specific offences in relation to burial grounds that are not otherwise set out in the 2016 Act. There was considerable discussion about the kind of activity that might be considered an offence.

There was general consensus that various kinds of activity would constitute a nuisance. This ranged from relatively low-level activity, such as using the burial grounds to walk dogs, to more serious activity like drug-taking or prostitution. It was acknowledged that the more serious activities considered would already be criminalised under existing legislation. While it was generally considered useful to be able to penalise other sorts of activity, it may be difficult to prosecute them, and hard to enforce.

It was suggested that the scattering of ashes on a lair without the permission of the burial authority could be an offence. There was some agreement about this, particularly given the increased emphasis placed on the management of ashes under the 2016 Act. Again, the enforcement of such an offence might be difficult, and prosecuting someone for committing this offence would be a sensitive subject.

Even if these were not set out as offences in the regulations, burial authorities would still be able to ban such activity using management rules. Again, however, enforcement might be difficult.

Action: the Scottish Government will consider whether specific offences need to be set out in regulations.

AOB

The group considered whether burial authorities would still be able to make their own management rules when the regulations were in force. SCK said that would still be possible, and suggested that burial authorities might want to use such rules for detailed matters that were not in the regulations or matters where there was a need for local deviation.

SCK also said that in addition to regulations (which were legislation and therefore had to be followed), the Scottish Government would also issue guidance or a Code of Practice to support the operation of the regulations. These could provide additional details or practical examples for matters contained in the regulations, and could also suggest best practice for matters that are not in the regulations. 

Next steps

SCK said that a note of the meeting would be circulated. The group would be asked for views about whether a further meeting is required, or whether business can be done by email.